A Trial Lawyer’s Secrets For Critical Reading

NewspaperReading

We have been awash in press reports of scandal in recent years.  Whether Hillary’s emails, Trump’s Russian connections, sexual abuse in the Catholic Church (again) or assault allegations against a Supreme Court nominee, tremendous effort has been put into press coverage.

We must, however, ask a question of each piece of reportage: what is its purpose? Perhaps I can help here.

I have been a lawyer for over thirty years.  Most of those years have been in litigation – another way of saying trial practice.  Trial lawyers ask questions for a living, although we do it in different contexts.  And each context gives a question its own purpose.  Let me illustrate.

When I get a new case I ask questions of my client.  My questions are purely about seeking information.  I want my client to tell me everything – I do not want to be surprised by new facts somewhere down the road.  So I ask open-ended questions and follow up where instinct tells me there is more to be said.  In sworn statements or in depositions, I ask the same kinds of questions of eyewitnesses and experts that I might need at trial.  My beliefs about the case are irrelevant at this stage – I need all the straight information I can get.

The analog in news reporting would be that of the investigative journalist.  This kind of reporting dives into a story and follows the facts where they lead.  This kind of journalism finds the people who know something and tells us what they know.  There will probably be some conflicting narratives, but a good journalist will present them all, along with the information that will help us to resolve those conflicts.

A good example of this kind of reporting is here, the story where the Indianapolis Star broke open the longtime secret sexual abuse of Dr. Larry Nassar in his work with USA Gymnastics.  This story proves that this kind of straight investigative reporting is still out there, if not as common as we might like.

When I get into court for a trial, my job changes – now it is to advocate.  I take what I know and form a narrative that makes sense – but only in a way that is most favorable to my client.  My job is to create a narrative that makes more sense than the narrative that my opponent will be pitching.  When I call witnesses I do so only to support my side of the case.

When I call a witness who will be helpful to my case I will ask questions more or less open ended.  Not as open ended as in private with my client, but open ended enough to let the witness tell of the facts I want the jury to hear.  I ask questions where answers will help me and I do not ask questions where the answers will not be helpful.

This is mostly like the now-mainstream style of news reporting.  It is rarely about pure investigation and there is virtually always an agenda, or at least a point of view.  There will be a narrative and the reporting will involve questions which support it.  Which narrative the story supports will vary by source.  The Washington Post and the Wall Street Journal are both good papers but they are run by editors whose worldviews differ.  Whichever the source, ask yourself if there is narrative that the author is supporting, and if so, what it might be.

Finally come witnesses that are not favorable to my side of the case.  This is where cross-examination comes in.  There is an old saying that a lawyer in a courtroom never asks a question to which he does not already know the answer, and cross-exam is where this saying is (or should be) true.

Questions in a good cross examination are tightly focused and give the witness no room to move.  “You were driving on Main Street, is that right?”  You lead the witness by choosing the words, framing the scene and then asking the witness to admit or deny.  Your goal is to blow a hole in the witness’ credibility.  You show weaknesses in the witness’ ability to see what he says he saw, weaknesses in his ability to remember, and you try to get him to agree with things that don’t make sense.  I also find ways to hint at bias and, if I am really lucky, I have facts that will point out some prior act of dishonesty to help lead the jury to conclude that the witness may not be truthful now.  The less credible the witness seems when I have finished my cross examination, the better I have done my job.

An example here would be asking if a witness was looking at his speedometer or GPS.  If yes I can create the impression that he was looking at the dashboard when he should have been watching traffic.  If no I dig in to illustrate that he could have been mistaken when he stated earlier that he was going 35 mph.  And if the witness previously made a demonstrably false statement I can suggest that this and other current statements (whatever they may be) could easily be false as well.

In recent years I have noticed a more strident advocacy in some reporting that is more akin to cross examination than to traditional reporting.  I have seen this kind of reporting in left-ish sources that hack away at the credibility of Cardinal Vigano in the recent Catholic sex abuse controversy.  It has also been on display in the more recent right-ish attacks on the credibility of Christine Blasey Ford who has made allegations of a long-ago sexual assault by the man up for the U. S. Supreme Court.

Note in both of those examples cited directly above, the focus is not on whether the testimony of the subject of the story is true or not.  Each story brings up damaging facts to raise questions about the subject’s credibility so that readers will conclude that what has been said is either untrue or should be discounted for other reasons.

Each of these kinds of questions has a place in an adversarial legal system where both sides do their best to get everything out in the open.  I also believe that each kind of reportage has a place in the free-for-all of modern political news.  However, we who consume such news must always be careful to ask ourselves if we are reading or hearing the whole story.

In a trial’s final arguments the person seeking relief gets both the first and the last word.  After his argument there is a response by the defense and then a brief final rebuttal that the defense cannot counter.  When defending, one of my go-tos in final argument is to point out to the jury that my opponent gets to go first and also gets to go last.  I ask the jury for one single favor:  After you have heard what opposing counsel says in rebuttal, take just a moment and ask yourself what I would have said to you in reply had I been given the opportunity.  My hope is that they will think critically about what they have just heard, and maybe question it.

EintsteinQuestionEverything

This is also good advice for we consumers of news and information in today’s mediascape.  Whatever the source and whatever its angle or agenda, we must take just a moment and ask ourselves what someone coming from a different perspective or worldview might have addressed had that source been given any input into the piece.  In reading news you have control over how critical or skeptical you will be about any story.  As is written on the chalkboard behind Albert Einstein in the widely shared meme created from the famous photo, question everything.

Photo Source:  Pixabay, CC0 Creative Commons license.

10 thoughts on “A Trial Lawyer’s Secrets For Critical Reading

  1. Yup, a great heuristic and thanks Jim for the word of the day which I had to look up.

    One of the points in the book “The Death of Expertise” is that colleges are not teaching enough critical thinking because of increased competition for students and more value placed on student experience than learning.

    Mrs DougD went to Israel last year with a group from our church, one of the things they did to prepare was watch a documentary called “With God on Our Side” which is about Christian Zionism and the Israel security wall. Very interesting stuff, it’s available here:

    Anyway I didn’t go on the trip but I watched the film. Afterward one of my observations was that the firm changes it’s frame of reference to conveniently support it’s point, from very macro view during WW1 to very micro after WW2. Our pastor (who is a pretty good critical thinker) said “That’s true, but remember this film’s purpose is to counter a narrative”

    And finally (this is like a three point sermon or something 🙂 ) I am more familiar with that Einstein meme with the text on the board being:

    f = the optimal number of guitars
    x= your current number of guitars
    then f=x+1

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    • I don’t think it is well enough understood how, on a certain level, we are so used to being manipulated by advertising and entertainment that we no longer think about it. In a courtroom I am always selling – but at least there there is also someone else selling the exact opposite of what I am trying to peddle. In real life (IRL as my kids say) almost everyone outside of our friends and family are selling something but there is not someone there to jump in and point out the other side. It is up to us to do this for ourselves and I agree that kids today are not taught this skill.

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  2. Excellent advice. And as you observed, purpose is crucial. Good news reporters try to present an unbiased account of the facts, even though perfect objectivity is unattainable. Good advocates and opinion writers try to present a story that is truthful but also favorable to their client or political agenda. Problems arise mainly when advocates and opinion writers pretend to be news reporters. Fortunately, they’re usually not too subtle about it.

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    • I think that much modern news is biased in the way a direct examination is biased – the choice of which stories get broadly promoted and which don’t.
      The aggressively biased sources may not be something to rely on but those sources seem to have been the sources for some news that later turns out to be something.

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  3. Pingback: Recommended reading | Down the Road

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